#### Little Schuylkill Navigation, Railroad and Coal Company *versus*French and Funk, Administrators. Same *versus*Same and Gest, Guardian, Etc.

1. Plaintiff declared for injury to their mills, water-power, etc., and appurtenances, by filling up a stream with dirt, so that the works had to be abandoned. *Held,*that the evidence of the value of the superintendent’s house and other improvements on a single tract of land on which the works were erected was relevant.

2. Prior to the injury the plaintiffs bought leases of the premises; they purchased the fee and owned it when the injury occurred. *Held,*that evidence of the value of the leases was relevant.

3. The Court charged: *“*While you may apportion damages with a liberal hand, you would be doing violence to your duty if you were to visit upon one any more damages than you thought he was fairly entitled to.” *Held*not to be error, the Court having beside specified the particular subjects for damages, and guarded the jury against considering illegitimate subjects, etc.

4. Little Schuylkill Navigation Co. *v.*Richards, 7 P. P. Smith, 147, remarked on.

March 9th, 1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Writs of error to the Court of Common Pleas of *Schuylkill*County, of January Term, 1876, No. 18 and 19.

The actions in which these writs of error were taken were actions on the case commenced August 25th, 1860.

One case, by Clayton French and C. W. Funk, administrators of AVilliam H. Richards, deceased, against the Little Schuylkill Navigation, Railroad and Coal Company; the other by Clayton French and John B. Gest, guardian, etc., of the minor children of Richards. The first was for injury to the property of French & Richards prior to the death of Richards; the other for injury subsequent to that period.

The declarations alleged that in October, 1856, French & Richards were the owners of a mill property on the Little Schuylkill River, “ comprising 65 acres of land, with the appurtenances, and with a water-power, saw-mill, paint-mill, machinery, and other water-works thereon erected, driven and kept in operation by means of the water supplied by the said riverthat the defendants “ wrongfully, injuriously, and unlawfully made, kept up, and maintained an embankment of coal-dirt, slate, screenings, etc., across a bend in the said river above the said mills, etc., and constructed by excavations a new channel for said river, of which said embankment formed one of the confines, whereby the natural and customary flow of said river was changed, and diverted *367above said mills,” etc., and tbe water was stopped from running in their natural course to the said works and supplying them with water-power necessary for working them, and the plaintiffs could not use the mills, etc., nor exercise their trade and business so beneficially as they otherwise w ould have, but were deprived of the use and enjoyment of their mill property, etc., and were “obliged to abandon the mills, machinery, and water-works so rendered useless and unprofitable,” etc.

The second count alleged, that on the 65 acres were a lai’ger excavation and embankment, which by *the*natural flow of the river formed above the mills, etc., “ a large bay and pool of water,” by which the mills, etc., were driven and kept in operation, etc., and that the defendants cast into the river and streams emptying into it above the mills, etc., coal-dirt, slate, etc., from the mines of the defendants and other persons, on and near the said river and streams, and carelessly, negligently, and wilfully put upon the margin of the said river and streams other quantities of coal-dirt, etc., which were liable to float and wash down said river and streams, by the ordinary action of the water, upon the land of plaintiffs, and into the bay, pool, mills, etc., and the bay and pool became thereby filled and destroyed, and the water diverted and obstructed from running to the bay, etc., so that the mills, etc., could not be used without great inconvenience, trouble, and expense, and the business became impeded and injured, etc.

There was a third count which did not vary materially in the setting out of the cause of action.

After the evidence in the case had been closed, and one of the counsel for plaintiffs had addressed the j ury, and counsel for defendants had commenced, the Court permitted an amendment averring that by reason of the acts of the defendants the coal-dirt, etc., were “ deposited upon and destroyed a large portion of the plaintiffs’ land, being a part of said mill property, viz., two acres of meadow-land.”

The cases were tried together May 4th, 1874, before Green, J.

The evidence showed that the property of plaintiffs was on the Little Schuylkill Eiver, about four miles above Port Clinton. They became the owners about 1854; they put up a saw-mill, enlarged the paint-mill, built a stone dwelling-house for their superintendent, manufactured paint there, and there were valuable veins of mineral paint, which was ground at the mills. After giving the foregoing evidence, and evidence to show the character of the work done at the works, etc., the plaintiffs proposed to ask C. W. Hill-*368man, a witness on the stand, what was the original cost of the stone house, whether it had any value except as an adjunct to the paint-works, and to what extent it was affected by the injuries alleged to have been done by defendants.

The offer was objected to by the defendants as irrelevant and not competent in measuring damages. The Court admitted the offer and sealed a bill of exceptions.

The witness then testified as to the cost of the building.

He also testified: That in the spring of 1857 it was found that there was a great deal of coal-dirt at the mouth of the head race; their dam broke, and dirt accumulated ,in the stream, and continued in it; they ceased operations there in 1860; they had not water enough, because there was too much coal-djrt in the mouth and neck of the race; there was coal-dirt on the west bank of the river ; it made the bank; plaintiff’s race was on the east side; coal-dirt went into the river from the embankments; the original channel was changed; the new channel was about 300 yards above the race ; coal-dirt was brought there in cars and dumped into the river; the dirt would wash in on an ordinary swell of the water; there was a bend in the river above the head race, making the new channel throw the current on the opposite shore, and the overflow from it filled the meadow with coal-dirt and sand, and ruined about two acres. He testified as to the value of the injury; he gave evidence also that the dirt, etc., was placed there by the defendants.

Other witnesses testified to the same effect. There was similar evidence also as to coal-dirt, etc., being thrown by the defendants and their tenants, by their directions, into the tributaries of the Little Schuylkill, and carried into it so as to injure plaintiffs’ works.

French, one of the plaintiffs, testified, under objection and exception, that they bought the interest of J. S. Silver in mining leases and a small paint factory; that they had paid Silver about $18,000 for the leases, water-power and mill, besides what they bought after they took possession; the water-power was considered valuable; they had been keeping idle to get damages ; witness thought there was nothing in Pennsylvania equal to this paint; the leases were more valuable than the title they afterwards bought; could not say whether the leases covered more lands than that they bought afterwards.

The defendants gave evidence that the coal-dirt, etc., was put into the stream by other persons than themselves and those under their control; that they riprapped the banks so :as to prevent the coal-dirt from falling into the stream, and .generally in answer to the plaintiffs’ case.

*369The plaintiffs’ point, which was affirmed, was:

“ If the jury believe that the defendants did the acts com-plained of by the plaintiffs, and if the jury believe the acts of' defendants, combined with .the acts of others, did the damage, then defendants are liable for the proportion of the damage done by reason of their act, and in suck case the jury have the right to measure the proportion of the injury done by the defendants with a liberal hand.” •

The Court charged:

.... “ The river was not dammed up for the purpose of causing the water to flow into the race when the plaintiffs first commenced their operations. The plaintiffs allege that subsequently, after the channel of the river had been changed and straightened, and the deposits of coal-dirt, etc., had been made, and some dirt thrown directly into the river, the course of the current above the mills was changed, and the river and head of the race commenced to fill up wdth coal-dirt. That for a time they remedied this by placing stones in the bod of the river to a height sufficient to cause a ripple; then as the filling up became greater they put in cribbing across the river, so as to dam the water to a greater height, and put up a stone wall along the bank of the side opposite the race, so as tovthrow the current upon the other side. The plaintiffs allege that in spite of what was done the river and race continued to fill up with dirt, affecting the use of their water-power more and more until 1860, when the evil had become so great that their water-power was entirely gone, and they were obliged to abandon their mills.

“ What was the cause of this injury to the plaintiffs ? This is a question .of fact for the jury to determine. Lid it arise fro.m any of the causes alleged by the plaintiffs ? If not, then the defendants have not injured the plaintiffs. If it did, then the defendants are responsible to the extent of the injury caused by them. Has this injury been done either by the changing of the river or by the washing down of the coal-dirt from the embankments made at different points along the river, or by the direct throwing of the coal-dirt into the stream ?

“ The fact is undisputed that a new channel was dug by the defendants in 1855 and 1856, just below what is called Miller’s bridge. Lid that change the current so as to cause injury ? Lid this cause the dirt and debris to flow and wash down so as to fill up the dam and head-race, either in whole, or in part, or thereby injure the water-power? You have it in evidence where the dirt was placed that was taken out of the new channel, and how the coal-dirt was deposited upon *370this newly-formed dirt-bank, and also across the old channel of the river, leading into and out of the head-race, which the new channel was dug to avoid. Did this injure the plaintiffs, or did the manner in which the'coal-dirt embankment was made have the effect of causing the ordinary rains and freshets to wash it down into the river and down the stream ?

“ Another complaint is that the coal-dirt deposited by the company at different places along the river, from the cars, was either thrown directly in the river or was so close to the river that it was washed in by the rains and high water and ordinary freshets, and carried down into the plaintiffs’ dam and mill-race. . . . Another complaint is .that large quantities of coal-dirt were deposited in and near the river, upon the flats at Tamaqua, and upon the branches of the Schuylkill above Tamaqua, at the Donaldson colliery, at the collieries of Taggart and the Carters, above Tamaqua, and at collieries of the Wabash Creek, a branch of the Little Schuylkill. These combined causes, it is claimed, had the effect of causing the injury to the water-power of the plaintiffs.

“If that is the case, you will next ascertain what proportion of the stuff with which the dam was filled was of the dirt which was carried down the liver, and for what proportion of it the defendants must be held responsible.

“ The defendants ai*e to be held responsible for their own acts and not. for the acts of others, unless directed or authorized by them. If others have also contributed to the filling of the dam by depositing coal-dirt in the stream or along the sides, they must be held responsible for their share of the injury, and the injury they have caused cannot be put upon the shoulders of the defendants. This being’ the case, the jury must examine this evidence with care to see what proportion of injury the defendants have done either by themselves, their agents, or their tenants, under their direction and authority. . . .

“You must also take the evidence on both sides, of the manner in which these deposits were made,' whether protected by rip-rapping or not, and whether it was done in so negligent a manner as to wash away into the stream when the rain and high water came. The defendants were bound to prevent their deposits from being washed in by the rains and ordinary freshets of the river, and if they did not, they are responsible in damages to the persons injured thereby.....

“It is claimed that a portion of these deposits, either thrown directly into the stream or subsequently washed in, were carried down by the current and helped to fill up plaintiffs’ dam and race; of this you must judge.

*371“It is also claimed that large amounts of coal-dirt were also thrown into the river, or were deposited so near in. as to be washed in by the tenants of this defendant, lessees of their coal lands, and doné under their direction and authority. The more relation of landlord and tenant will not make the landlord liable for the acts of the other. But if the evidence shows that the places where the coal-dirt was deposited were selected by the defendants, and that the deposits were made under their direction and under their supervision and control, then the landlord would be responsible for any negligent depositing, whereby the dirt was washed down by the rains and freshets into the plaintiffs’ dam. But if the defendants did not exercise such authority, then they are not responsible for the acts of their tenants; and the jury must not hold them liable for what their tenants did, nor for what strangers did.. . . As then the jury will understand that the defendants are to be held liable only for their own'acts or those authorized and directed by them, and not for the independent acts of others, it becomes important for them to inquire what proportion of dirt and debris for which defendants are liable found its way into plaintiffs’ dam and race, and what proportion others put in, either directly or indirectly. This is undoubtedly a difficult question to determine; from its very nature the truth only can be arrived at proximately. But it is nevertheless the duty of the jury to determine this according to the light which the evidence sheds upon it. You must take into consideration all the facts of the case, the places where these different deposits were made and how they were made, their nearness or distance from the plaintiffs’ land, the manner in which they were protected, their nearness or distance from the river-bank, the relative amount thrown directly into the river compared with that deposited by its side, the relative number of deposits for which the defendants would be reponsible, as compared with the others; these and many other things must be taken into consideration by the jury in determining how much of the coal-dirt and other stuff in plaintiffs’ dam and race the defendants are accountable for, and after all the result you will arrive at will prob-” ably be but an approximation to the truth. The matter is, in its very nature, uncertain. But while you may apportion these damages with a liberal hand, still you would be doing violence to your duty if you were to visit upon one any more of damages than you thought he was fairly liable for.

“In determining this question you must also take into consideration the material that was found in the dam and race by the different persons who examined it for the purpose of ascertaining what proportion is made up by the deposits *372of these coal-dirt heaps, and what proportion is made up of the sand, leaves, dirt, and other stuff that is gradually carried down a river and'settles in the dams and deep still water, and for which the defendants áre not accountable. . . .

. “ Having thus determined the injury which the plaintiffs suffered, and also the proportion of that injury for which the defendants are to be held responsible, if for any at all, your next inquiry will be how should the damages be determined which the plaintiffs have sustained. In the first place, you must bear in mind that you can give only such damages as have been sustained up to the time of the bringing of this suit, in August, 1860. You may not allow for any damages that may have been done after that, nor for any prospective damage based upon the probability of some future freshet that would fill up the dam and race with coal-dirt and other debris once more. A future freshet, like the extraordinary freshet of 1850, instead of filling up might clean out. No one can foresee its results. The plaintiffs can only claim for the damage actually suffered up to the time of the bringing of the suit, and of the defendants only that proportion of it which they did. ... If the jury should determine that the changing of the channel did cause injury, and that, by the erection of the cribwork and stonework testified to, the damage was repaired, then if this repair was reasonable in cost and restored the water-power, that would be the measure of damages sustained. And we say that if the injury arising from the changing of the current, if any there were,, as from the filling of the dam and head-race, can be repaired and the water-power restored to what it was before the injuries were done, that then the cost of doing this, as well as reasonable damages of detention and delays in making them, is the true measure of damages, providing the amount does not exceed the difference in value of the land and improvements caused by the injuries so done, before and after they were done, and the jury will apply this rule as to all the different injuries sustained up to the bringing of this suit.” . . .

The verdicts were for the plaintiffs: in the first suit for $3905 ; in the second for $8190.

A new trial was refused on condition that the plaintiffs within thirty days remit one-third of the amount of the vei'diet in each case. This was accox’dingly doixe and judgment was entered on the verdicts for the x’educed amoxxnts.

The defendants took a wifit of error; they assigned for error:

1-2. The admission of the offers of evidence objected to by them.

*3733. The affirmance of plaintiffs’ point and the part of the charge in brackets.

*J. Ellis*and J. *R. Bannan,*for plaintiffs in error.

The declaration lays the injury to the mills, water-power and meadow-land, but not to the storehouse, leases and other improvements, which are not mentioned; the evidence was therefore collateral and irrelevant: Schuylkill Nav. Co. *v.*Farr, 4 W. & S., 363. The injured party is to be compensated only to the extent of his actual injury: damages, not necessarily arising from the acts complained of, are not implied by law: Pennsylvania R. R. *v.*Books, 7 P. F. Smith, 339; Laing *v.*Calder, 8 Barr, 479 ; Searle *v.*Lackawanna & B. R. R., 9 Casey, 57. To measure damages with a “ liberal hand,” might be proper instruction" where vindictive damages were claimed, but not where the damages should be actual compensation only : Sedgwick on Damages, 26, 553 ; Heil *v.*Glanding, 6 Wright, 499.

*G. W. Earquhar*(with whom was *F. W.*Hughes), for defendants in error.

The stone building was appurtenant to the mills, etc., and formed part of the property ; it was therefore affected and injury to them: Honsee *v.*Hammond, 39 Barbour, 89 Seely *v.*Alden, 11 P. F. Smith, 305.

As to the third and fourth assignments. The language of the Court must be taken in. connection with the whole charge: Carothers *v.*Dunning, 3 S. & R., 379; Reeves *v.*Del. L. & W. R. R., 6 Casey, 454; Little Schuylkill Nav. Co. *v.*Richards, 7 P. F. Smith, 147.

Judgment was entered in the Supreme Court, March 20th, 1876.

Per. Curiam :

The declaration in this case alleges that the plaintiffs were the owners of a certain mill property on the Little Schuylkill, comprising sixty-five acres of land, more or less, with the appurtenances; and it adds to this, the subject of the injury, “ and with a water-power, saw-mill, paint-mill, machinery and other water-works thereon, etc.” Thus having described the tract of sixty-five acres as a single whole, with the addition of certain leading characteristics, it was unnecessary to enter into a minute detail of every part and parcel of this entirety. If such were essential, then the standing timber used at the saw-mill, and the mines of paint-earth .used at the paint-mill, must also have been set forth. The mill property and appurtenances comprised the entire subject of the injury as a whole. Now the super*374intendent’s house, built for the very purpose of successfully operating the mills, saw and paint, and other works, was a part of the very subject of injury and not an independent matter. It constituted a part of the value of the entirety and therefore evidence relating to it was neither irrelevant nor upon an undescribed subject in the declaration.

For the same reason the leases were not irrelevant to the question of value of the premises prior to the injury. The Court did not say they .were the only evidence of value, or that the jury must be bound by their terms; but simply permitted them to go to the jury as circumstances which bore upon the question of prior value, and might be used as casting light upon that fact.

If the instruction of the judge in regard to the damages rested alone on the affirmance of the plaintiffs’ first point, it would not be free from doubt. To say to a jury that they may measure the proportion of the injury done by the defendants with a *liberal*hand, is to use an expression that, unless qualified, might indicate a right to go beyond the strict line of legal judgment and indulge in a latitude not warranted. When we know that corporations are often viewed with some disfavor, it is better not to use language which may incline a jury towards a popular prejudice. But in this case the language was so clearly and fully qualified by the judge in his general charge, that it would be illiberal indeed to draw from his language unlicensed freedom to do wrong. We must not overlook the pains he took to lay before the jury the true subjects entering into the question of the damages, and how carefully he guarded them against including therein the injury arising from the acts and negligences of others, and after this full review of the nature of the injury, his conclusion, when he says : “ The matter is in its very nature uncertain. But while you may apportion these damages with a liberal hand, still you would be doing violence to your duty if you were to visit upon one any more of damages than you thought he was fairly liable for.” Looking at the entire scope and tone of the charge, we cannot say the jury must have understood the judge tornean that they had an unlicensed freedom to measure the .damages, and to throw into the scale against the defendants their feelings of disfavor or prejudice.

The words “ measure the proportion of the injury with a liberal hand,” were used in the opinion in Nav. Co. *v.*Richards, 7 P. F. Smith, 147, not to indicate an instruction to be given to a jury, but as the probable course which would be pursued by a jury, influenced by their natural instincts, in a case where the difficulty of solution was caused by the *375wrongful act-of the defendant himself. Nor would their use as an instruction be considered absolute error, where as here the words are so clearly qualified as to show that no unlicensed freedom to swell damages is intended to be given; that no unlicensed latitude is allowed for prejudice or disfavor. Upon the whole we perceive no substantial error in the record.

Judgment affirmed in each case.